[2019] KEHC 5048 (KLR)
The court held that the preliminary objection raised by the defendant could not be determined at this stage because the issue of when the plaintiffs became aware of the alleged defamatory publication is a factual matter that requires evidence. The court emphasized that a preliminary objection must be based on a pure...
Source-derived case information.
- Citation
- [2019] KEHC 5048 (KLR)
- Parties
- Plaintiff: Mary Kathure; Plaintiff: Per Hjelmager; Defendant: Uliks Hasanaj
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 144 of 2018
- Procedural Posture
- Civil Suit / Ruling on Preliminary Objection
- Outcome
- preliminary objection dismissed
- Judges
- A Mbogholi-Msagha
- Legal Topics
- Defamation, Limitation Periods, Preliminary Objection, Striking Out Pleadings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Mary Kathure
Plaintiff
Per Hjelmager
Plaintiff
Uliks Hasanaj
Defendant
Procedural Posture
Civil Suit / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the suit is time-barred under Section 4(2) of the Limitation of Actions Act.
- 2 Whether the suit is defective for non-compliance with Order 1 Rule 13 of the Civil Procedure Rules.
- 3 Whether the preliminary objection is capable of disposing of the suit at this stage.
Ratio Decidendi
The court held that the preliminary objection raised by the defendant could not be determined at this stage because the issue of when the plaintiffs became aware of the alleged defamatory publication is a factual matter that requires evidence. The court emphasized that a preliminary objection must be based on a pure point of law capable of disposing of the suit without delving into factual disputes. Since the limitation period and compliance with procedural rules could not be conclusively determined without evidence, the court found it inappropriate to strike out the suit at this stage. The court further noted that striking out pleadings is a drastic measure that should only be applied in...
Court Disposition
preliminary objection dismissed
Orders
- The Notice of Preliminary Objection is dismissed with costs to the plaintiffs.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
INTHE HIGH COURT OF KENYA AT NAIROBI
CIVIL SUIT NO. 144 OF 2018
MARY KATHURE......................................................................1ST PLAINTIFF
PER HJELMAGER....................................................................2ND PLAINTIFF
VERSUS
ULIKS HASANAJ...........................................................................DEFENDANT
R U L I N G
The plaintiffs filed this suit against the defendant for damages for defamation attributed to the defendant.
The defendant filed a Memorandum of Appearance following service upon him of the summons and the plaint. On the same date that the memorandum of appearance was filed, the defendant lodged a Notice of Preliminary Objection to the effect that the suit was filed contrary to Section 4(2) of the Limitation of Actions Act, Cap 22 Laws of Kenya, it was contrary to Order 1 Rule 13 of the Civil Procedure Rules 2010, incurably defective and bad in law.
Both parties have filed submissions to address the preliminary objection which I have read.
An action for libel or slander must not be brought after the end of 12 months from the date of the act complained of. This is as provided under Section 4(2) of the Act aforesaid.
I have considered the rival submissions and the authorities cited. I have asked myself whether or not the preliminary objection may result in the final determination of this suit at this stage, going by the observations in the case of Mukisa Biscuits Manufacturing Company Ltd vs West-end Distributor Ltd (1969) EA 696, which provided inter alia as follows: -
“So far as I am aware, a preliminary objection consists of a point of law which has been pleaded or which arises by clear implication out of pleadings, and which if urged as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the court, or a plea of limitation or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration.” Per LAW JA.
In the submissions filed by the parties and more so the plaintiff’s counsel, and which I agree with, the question of when the plaintiffs became aware of the offending publication is an issue for determination, not by way of the preliminary objection but evidence. The preliminary objection shall therefore not determine the case entirely at this stage. To delve any deeper into the issues raised by the parties in their respective submissions may compromise the main trial, which I believe should take place.
In any case, the striking out of a pleading is a drastic step which should be applied only in the clearest of cases. That is so because, a party is likely to be driven out of the seat of justice before a hearing, thereby breaching the very essence of the policy of access to justice.
I am not persuaded to accept or allow the Notice of Preliminary Objection which is hereby dismissed with costs to the plaintiffs.
Dated, signed and delivered at Nairobi this 4th day of June, 2019
A.MBOGHOLI MSAGHA
JUDGE